Our two proposals aren't mutually exclusive, but are essentially quite similar. For any criminal case there is a corresponding civil action to make the injured party whole. These perps are acting against the law, and as such it's obvious they should be subject to both avenues of justice.
IMHO the civil approach is just a lot easier to adjudicate - when the victim is found innocent, they should be immediately compensated for any and all damages resulting from arrest, imprisonment, and trial. If the department wants to recoup losses from specific individuals who went against policy, they can settle that much thornier argument on their own time.
Proving that a specific individual acted criminally outside their mandate is an even higher burden to meet. When this is warranted, it would be fantastic. But we can envision many cases where an individual cop is following a reasonable policy, yet it still results in an innocent being held in jail for a day and losing their job as a result.
> there is a corresponding civil action to make the injured party whole
You haven't been in many court cases or you wouldn't be saying this. The vast majority of crimes is committed by people who won't ever pay restitution. Because they can't, or because they simply won't (they'd rather do jail time). So if someone commits a crime against you, your car, your house, you best assume it's going to be you yourself or your insurance carrying the cost.
> when the victim is found innocent, they should be immediately compensated for any and all damages resulting from arrest, imprisonment, and trial
Thus giving everyone, including judges, a financial incentive to never find people not guilty. (It's already the case that "guilty party pays legal costs" principle sometimes results in the judge finding whoever's got the most expensive lawyer guilty and assigning 1$ restitution to avoid having the poor person pay legal costs. This would be 1000x worse).
If you do this, everyone will be immediately convicted for "resisting arrest" or some such.
In the US, defendants are not found innocent. They are found "not guilty". OJ Simpson is all likelihood the killer of his ex and her friend. The court did not find him innocent of that, but rather found that the standard of proof had not been met to find him guilty, ergo they find him "not guilty" but they certainly did not submit a finding of "innocent".
The standard of proof in a criminal trial is "beyond a reasonable doubt". The standard of proof in a civil trial is "by a preponderance of the evidence". It's roughly the difference between "overwhelmingly likely to be guilty" vs "more likely than not to be the case".
I don't think you can turn every finding of "not guilty" into a successful civil standard of loss for the defendant. Suppose it's 95% likely that I was guilty of a crime. That's likely to not meet the standard to convict, but turn that around into a civil suit for false arrest or malicious prosecution and I'm going to lose the case against the civil standards.
> I don't think you can turn every finding of "not guilty" into a successful civil standard of loss for the defendant
The civil standard would not be applied to the facts of the original case, but to the result of the criminal trial. The "preponderance of the evidence" you refer to is that the defendant was found not guilty in the criminal case, which is the sole indication of whether the criminal prosecution was correct or not.
Yes, there will be close cases where the defendant seems awfully guilty, yet is acquitted of the criminal charges. But arrest and imprisonment while awaiting trial is not supposed to be extrajudicial punishment! It would be perfectly reasonable for a defendant to lose the civil trial and have to make the original victim whole, yet be reimbursed for his criminal defense attorney fees etc.
Concretely, OJ Simpson should have been reimbursed for his arrest and imprisonment?
Two questions:
1. In your personal opinion.
2. Under your proposed system change.
I don't "require" that a system change be perfect, just that it be an improvement, but you can imagine that the idea of paying OJ Simpson for his arrest, imprisonment, lost lifetime earning potential, etc, would be extremely problematic to getting this change through.
I also worry that juries would feel pressure to shade the standard of guilt. "I have what might be a reasonable doubt, but he's probably guilty and I can't stand the idea of my taxes going to reimburse this scumbag, so I'll just round it up to guilty..."
OJ Simpson is an odd (but probably not uncommon) case where he could be easily convicted of resisting arrest. So he's in a middle ground where damages from the original arrest are unjustified, but damages resulting from his further actions are justified. If he hadn't ran, he could have most likely posted bail.
But I don't see anything fundamentally wrong with reimbursing OJ Simpson for the time of his criminal arrest and imprisonment, especially because that money would have just been used to settle the civil suit. Remember, he was found innocent (no double jeopardy + innocent until proven guilty). We both can say the system got the wrong answer for this case, but insinuations or references to a lower standard of proof don't actually change the verdict.
Step back to a much simpler case of actual innocence. While walking down the street you are randomly arrested and held for a few days before you can post bail. What is the justification for the salary loss from your missed work being your responsibility, rather than the thugs' who caused it?
As far as encouraging judges/juries to find guilty for financial reasons. Do we want to hold back reforms on the fear that our system is so corrupt it will only worsen things? I can certainly see your scenario happening, but the proper course is to then fix those problems rather than give up and keep denying justice to victims of the "justice" system itself.
He was not found innocent. He was found not guilty.
The court is not charged with determining the difference and issuing a finding of "innocent". They are only concerned with guilty vs not.
Contrast with NFL replay referees, which are for some reason (I assume entertainment/excitement) charged with choosing one of three outcomes: ruling on the field is overturned, ruling on the field stands, and ruling on the field is confirmed. The distinction between the last two is without a difference as to the outcome of the game.
I'd much rather 100 guilty persons go free than to wrongly convict a single innocent as a critically important ideal. Any "reform" that has an obvious mechanism that would bias the system to erode that in favor of a lesser benefit is cause for concern for me.
Yes, because innocence is presumed. When a court finds "not guilty", it is logically equivalent to "innocent". It's not a free pass to say "he was only found not guilty; he's not innocent".
> I'd much rather 100 guilty persons go free than to wrongly convict a single innocent as a critically important ideal. Any "reform" that has an obvious mechanism that would bias the system to erode that in favor of a lesser benefit is cause for concern for me.
That biased mechanism already exists, although not to the same extent. A judge/jury who can't logically infer guilt would still rather lock up a scumbag, especially if they're likely to repeat offend. A large part of this principle has to be embodied in the judge/jury itself.
Not that it should be made worse. I suppose juries could be given leeway over the decision to reimburse, but it would be a larger change to our current system (nothing I've advocated for here is an actual change to the law, just an enforcement of proper civil liability). And you could still end up with the same problem where juries acquit yet routinely don't reimburse because "taxpayers shouldn't pay for someone being at the wrong place". It's less bad than that same person being in prison, but it's still wrong. Cops see "you can beat the rap but you can't beat the ride" as a feature, but everybody who believes in the rule of law should see it as a bug.
Of course nothing proposed here would change the fact that the sheer majority of cases plea out due to draconian punishments for nonviolent crimes, and so even long-held legal principles don't end up applying. But the present situation is tough precisely because there are multiple pathologies that all corrupt the justice system away from the fundamental ideals it purports.
IMHO the civil approach is just a lot easier to adjudicate - when the victim is found innocent, they should be immediately compensated for any and all damages resulting from arrest, imprisonment, and trial. If the department wants to recoup losses from specific individuals who went against policy, they can settle that much thornier argument on their own time.
Proving that a specific individual acted criminally outside their mandate is an even higher burden to meet. When this is warranted, it would be fantastic. But we can envision many cases where an individual cop is following a reasonable policy, yet it still results in an innocent being held in jail for a day and losing their job as a result.